Academic

Download of the Week

By Lawrence Solum

There are two Downloads of the Week The Bogus Tale About the Legal Formalists and Understanding Legal Realism, both by Brian Z. Tamanaha.  Here is the abstract of Bogus Tale--the abstract for Understanding is in the continuation of this post:

It is widely accepted that legal formalist views dominated at the turn of the last century: judges, legal academics, and lawyers purportedly believed that law was comprehensive, gapless, and logically ordered, and believed that judges reasoned mechanically or deductively from this body of law to produce right answers in individual cases. This view of law held sway until the 1920s and 1930s, when the legal realists destroyed formalist beliefs by exposing gaps and indeterminacy in law, and by arguing that bias infects judging.

This story has been repeated innumerable times by legal historians, legal theorists, political scientists, and many others. The formalist-realist antithesis shapes contemporary views and debates about judging.

This familiar story is false. A previous draft, The Realism of the Formalist Age, showed some of the evidence for this, but inadequately and without understanding its full implications. This completely revised version expands on the evidence and explains how the story got started, why it is fundamentally wrong, and how it nonetheless successfully secured a place in conventional accounts of US legal history. Through a combination of mistakes and deliberate deceptions, the initial piece of the story was constructed early in the century by political opponents of courts. In the 1970s, motivated by contemporary concerns, leftist legal historians and legal theorists reached back to the earlier period and reinvented the story about the legal formalists, producing an account which then swept the legal academy. This false story has been taken as true ever since.

This article is not just about getting our history right. It provides an object lesson in how modern practices of legal history and legal theory - how reliance upon specialists, and the adoption and repetition of stock stories - can lead to the spread and perpetuation of a falsehood, with real consequences.

Tamanaha's work challenges our fundamental assumptions about the history of legal thought, the meaning of "legal formalism" and the contributions made by the "realists."  This work is sure to be controversial, but in my opinion no legal academic who cares about the state of legal theory can responsibly ignore the evidence that some of our most fundamental beliefs about the core ideas of the discipline are based on distorted evidence.  Both pieces are highly readable and neither is long.

Download, read, rethink!

Here is the abstract from Understanding Legal Realism:

Legal realism is well known, but generally misunderstood. Through a close examination of the work of the legal realists and their predecessors, this article presents a complete reconstruction of legal realism. The most startling finding of this article is that all the key insights now identified with the realists were set forth by prominent jurists much earlier. The article shows that Pound, Cardozo, and the legal realists, and their entire (respective) legal generations, were exposed to so much realism that they could not help but see judging in realistic terms. It is often said today, "We are all realists now." Ample evidence will be presented in this article to show that at least three decades before the arrival of the legal realists, "They were all realists then too." What was said about judging at the time "a full century ago" sounds exactly like what is said about judging today. The reconstruction completed in this article will simultaneously confirm the insights of realism about judging while dissolving the historical distinctiveness of the legal realists as a group. This finding is consistent with Llewellyn's own insistence (in the closing words of his essay defining legal realism) that "A group philosophy or program, a group credo of social welfare, these realists have not. They are not a group." Llewellyn also wrote that "Their differences in point of view, in interest, in emphasis, in field of work, are huge. They differ among themselves well-nigh as much as any of them differs from, say, Langdell." Modern accounts of legal realism, which typically present the legal realists as a distinctive group, have ignored these puzzling assertions, but they hold the key to understanding what legal realism was about. The aim of this exploration is to rescue realistic views about judging from the clutches of the prevailing misunderstanding about legal realism. It is a follow-up to "The Bogus Tale About the Legal Formalists" (available on SSRN). The combined effect of these two pieces is to show that the formalist-realist divide is entirely false as a historical matter, and should be discarded. Modern debates about judging are structured by and remain trapped within this false antithesis.

Full post as published by Legal Theory Blog on May 03, 2008 (boomark / email).